Chapter 16
Developing a new statutory framework


16.1In chapter 15 we suggest that replacing the common law executor rule with new statutory provisions may make the law more accessible and effective for those in a burial dispute, and introduce greater clarity and certainty as to the legal position. In this chapter we set out the possible options for a new statutory decision-making methodology that might replace the executor rule.

16.2Because this is a first principles review of the law, the cultural values and perspectives informing people’s view of death and how it should be responded to must be clearly articulated within any reform options put forth. Our discussions with the Māori Liaison Committee have served to confirm this, as have our discussions with other cultural and religious groups. These cultural perspectives are deeply ingrained, as Ruth McManus notes:701

Cultural identity is always in the making through people’s everyday habits, practices and institutions. This is never more so than in death. The distinctive features of a culture can best show themselves in death, because the ways that people bid farewell to and inter their dead are a well-worn path for asserting what is held dear to the departed and their nearest and dearest.

16.3 A rule by which an executor has the right of final decision in these matters reflects a particular cultural perspective having its origins in English common law. That legal tradition has tended to value well-defined legal rights and obligations, consistency and certainty of judicial decision-making and timely disposal of the deceased’s body.702 These are valuable objectives. But it can also be argued that the executor rule is not a well-understood rule of law; that it may have been overtaken by social and legal developments, such as New Zealand’s increasing cultural diversity and the changing place of Māori customary law in the legal system; and that as a result of these developments, a new approach is required.

16.4In any new approach, the increasing diversity of New Zealand and the rights of minority groups must be accommodated. The role of Māori customary law must be reflected in any new approach that is developed. At the same time our reform proposals must be realistic and able to operate within a unitary legal system.

Overview of the chapter

16.5This chapter is intended to enable people to give their views with an awareness of the different cultural perspectives involved and the cultural, policy and legal implications of the various options for reform.

16.6We begin by setting out, at [16.9] to [16.26], the range of matters that may be relevant to a person making a burial decision. Not everyone will place the same value on the same matters. That is important to keep in mind when later we discuss the possible design of a new statutory regime. It must be flexible; that is, able to accommodate instances of disagreement and dispute where all involved take a different view as to which factor or factors should take priority in the burial decision.

16.7We then pose a range of questions designed to help determine the general outline of a new statutory regime.703 The first question is whether our law should recognise a right to determine what happens to a person’s body when that person dies. We refer to this as a “statutory right of decision”. Whether such a right should form part of our law is open to question. We examine the arguments that can be made both ways at [16.27] to [16.39].

16.8If there is a widely-held view that the New Zealand’s burial legislation should recognise such a right of decision, there are consequential policy questions relating to who should be entitled to exercise that right, how it should be exercised, and when it becomes operative. We explore these at [16.41] to [16.81].

701Ruth McManus Death in a Global Age (Palgrave Macmillan, Basingstoke, Hampshire, 2013) at 122.
702Heather Conway and John Stannard “The Honours of Hades: Death, Emotion and the Law of Burial Disputes” (2011) 34(3) UNSWLJ 860 at 881-885.
703See generally [16.27]–[16.82].